The Royal baby, the Rules of Succession, and the Realms

15th July 2013

In anticipation of the birth of the Royal baby, Parliament passed the Succession to the Crown Act in April 2013.  It provides that in future the eldest child will be next in line of succession, whether it is a girl or a boy.  The law will not come into force in time for the Royal birth, but the new baby when born will be next in line.  This Blog post explains the background, and the difficulties involved in changing the rules of succession.

Why have the rules of succession been changed?

Over the last 20 years a series of Private Member’s bills have been introduced into both Houses of Parliament to provide for gender equality in the rules of succession to the Crown.  The Labour government did not resist the principle of the change; but it explained that such a change could be initiated only by the government, because of the need to engage with the 15 other countries of which the Queen is head of state (the Realms).  The government supported the change because of the equalities legislation it had itself introduced.  Another motivating factor was that the other European monarchies were all amending their laws to introduce equal primogeniture.  Sweden was the first to change, in 1980, followed by the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, and Luxembourg in 2011.  Spain has said it will switch to equal primogeniture, but the Spanish constitution has not yet been amended.

Although supportive of the change, the Labour government ultimately failed to act because it was daunted by the size of the task involved in engaging with the Realms; by further complications, such as whether to address the discrimination against Catholics which is also built into the rules of succession; and because there was no immediate reason to do so.

Why now?

The marriage of Prince William and Kate Middleton in April 2011 provided a spur to action.  What had been a hypothetical problem became a real possibility.  Having written to them beforehand, in October 2011 David Cameron used the Commonwealth Heads of Government meeting in Perth, Australia, to engage with those Commonwealth countries that are also Realms and seek their agreement to change their own laws.  The UK government has said that it will not bring the new law into force until all the Realms have made the change.  When the change is made, it will be backdated to 28 October 2011, the date of the agreement announced in Perth.

Why has changing the law taken so long?  The Realms

Changing the rules of succession for the UK is complicated because the British monarch is head of state of 15 other countries, known as the Realms.  These include large countries such as Australia, Canada, Jamaica, New Zealand; and small countries such as St Vincent, Tuvalu and the Solomon Islands.  (The full list is Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas).

The UK government and Buckingham Palace want any change in the rules of succession to be introduced throughout the Realms (if there were different rules, that could lead in time to different members of the Royal family succeeding in different countries).  Under the Perth agreement all the Realms agreed to make the necessary changes to their own laws.  The nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.

Australia and Canada face particular difficulties because they are federations, where the consent of the states (in Australia) or the provinces (in Canada) is required for any constitutional amendment.  In Australia a compromise has been agreed that the State Parliaments will request the federal Parliament to change the law.  In Canada a minimalist law passed by the federal Parliament has since been challenged on the ground that changing the office of the Crown properly requires amendment of the Canadian constitution.

Will the Royal baby be next in line?

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy.  It does not matter that the new law has not been brought into force providing for equal primogeniture: so long as there is only one child, it is next in line.  The new law would only be needed if the eldest child is a girl, and a second child is subsequently born which is a boy.  The UK government hopes and expects that all the Realms will have come into line in the next 6-12 months, so the new law should have come into force by the time of the birth of any second child.

What other changes were made to the rules of succession?

Two other changes were made.  The Royal Marriages Act 1772 was repealed, and in future only the first six persons in line to the throne will require the Sovereign’s approval to marry.  Second, marrying a Roman Catholic will no longer disqualify a person from being in the line of succession.  But the prohibitions on the Monarch being a Roman Catholic remain: the Sovereign continues to be Supreme Governor of the Church of England, and must be in communion with the Church of England.

What does this change tell us about the British constitution?

Being unwritten, the British constitution is very easy to amend. Big changes, such as devolution to Scotland and Wales, reforming the House of Lords, or the Human Rights Act can be introduced by simple Act of Parliament.  What this episode shows is that changes to the succession to the Crown are much more difficult, because the change needs to involve not just the UK but the 15 other Realms.

It will have taken two to three years to effect this small change.  The difficulties in the Realms are multiple and varied.  Some saw this as a project of the UK government, and little to do with them.  Some struggled to realise what was required.  Some did not wish to provoke a wider debate about the monarchy.  At the other end of the scale, the two largest countries, Australia and Canada, have constitutions which are notoriously difficult to change.  So if any future change requires a constitutional amendment in either of those countries, the difficulties are further compounded.

It is too early to tell whether this small change has further consequences for the Realms themselves.  They are a widely scattered group of countries, most of whom have little in common.  It is possible that this exercise will have brought them a little closer together; it is also possible that it prompts some to question the link with the monarchy of a country so far away.

SUCCESSION TO THE CROWN BILL

7th March 2013

LORDS COMMITTEE STAGE 28 FEBRUARY 2013

The power of the well-phrased question

Bob Morris

There is nothing in Parliamentary debate quite like the well-phrased question for cutting to the heart of things. An issue is encapsulated and the minister has to respond. Unlike podium assemblies where speakers may hector without interruption, the UK Parliament can suddenly be made alive by a pithy intrusion.

Under examination was the clause that would abolish the rule dating from 1689 that no-one married to a Catholic may succeed to the throne. Discussion turned to an amendment (subsequently withdrawn) which would have permitted the sovereign to be a Catholic but made arrangements during the reign for the Supreme Governorship to be shouldered by an Anglican qualified under the Regency Acts. As noted previously – including by the Commons Political and Constitutional Reform Select Committee (PCRSC) in December 2011 (HC 1615) – removal of the Catholic marriage disqualification leaves intact the absolute ban on Catholics and anyone else not in communion with the Church of England from succeeding. The latter would, of course, disqualify Catholics (and most non-Anglicans) from succeeding even if the explicit ban on Catholics were removed.

Lord Forsyth (a Scottish episcopalian, former cabinet minister and Scottish Secretary) asked what was it that the government were trying to achieve with the provision:

‘Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic?’ (Hansard, Lords, 28 February 2013, col. 1230)

He added that he would be horrified if it were the latter. Whilst it was a good thing that people who wanted to marry should be able to do so, he had thought that the provision ‘was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that…’ Lord Stevenson then intervened to point out that the amendments tabled on the point went ‘to the heart of whether the present Anglican establishment in England can or even should remain in its present form’ and suggested that it was time for further Parliamentary consideration in some appropriate committee. This suggestion gained some support though not from the minister who sheltered behind the fiction that such matters were for Parliament alone itself to decide.

None of this will stop the Bill. Parliament knows when it is being bounced and in any case the things in the Bill are not in themselves bad things that should be stopped. On the other hand, what their Lordships pointed out was that, in the words of a PCRSC witness, ‘one cannot half open a can of worms, because all the worms will come out’.

Has the time come for Parliament to take a closer look? We shall see. What is certain is that the Forsyth question will not go away.

SUCCESSION TO THE CROWN BILL – POSSIBLE UNTOWARD EFFECTS?

This asks whether the Bill risks any untoward, unintended practical consequences and considers what, if any, may be among the longer term, less direct implications for church establishment in England.

Direct effects

The short Bill contains three provisions: gender neutral primogeniture is to be retrospective from the date of the CHOGM 2011 agreement; heirs may marry Catholics without disqualification; and prior sovereign marriage approval is restricted to the first six in line where marrying without approval entails disqualification from succession without invalidation of marriage.

The Bill does not disturb the requirements that no Catholic may succeed, that the heir must be in communion with the Church of England, must make a declaration on accession that swears fidelity to the Protestant faith, and must swear at coronation to uphold the Church of England. It is therefore the case that heirs who become Catholics are still barred from the throne. This only partial removal of Catholic disabilities is why Catholic reception of the change has been one of muted joy – muted, that is, in England: Scottish Catholics have customarily been more outspoken about the remaining disqualifications.

The Prime Minister, David Cameron, made the government’s position clear at the conclusion of the CHOGM meeting on 28 October 2011:

The great strength of our constitutional approach is its ability to evolve. Attitudes have changed fundamentally over the centuries and some of the out-dated rules  – like some of the rules of succession – just don’t make sense to us any more

…we have agreed to scrap the rule which says that no-one who marries a Roman Catholic can become monarch. Let me be clear, the monarch must be in communion with the Church of England because he or she is head of the church. But it is simply wrong that they should be denied the chance to marry a catholic if they wish to do so. After all, they are already quite free to marry someone of any other faith.[1]

Catholic marriages

Concern has been expressed in both Commons and Lords committees and in the press[2] about the implications of the requirement in Catholic ‘mixed’ marriages that the children should be brought up as Catholics. The general concern is that somehow the way would be opened to Catholic succession. Such a result would  conflict with the requirement that the sovereign is automatically Supreme Governor and church establishment in England threatened accordingly.

It seems uncertain just how far Catholics in ‘mixed’ marriages are obliged by Catholic canon law to insist that any children must be brought up in the Catholic faith. A Catholic Herald article[3] was emphatic that children had indeed to be brought up in the Catholic faith but, although the present writer cannot pretend to be an authoritative interpreter of the relevant Catholic canons, they do not seem as emphatic as the Catholic Herald has claimed.[4] On the other hand, there is no doubt that any heirs who professed the Catholic faith would be excluded from the throne. There would be no need for the sovereign to withhold marriage consent to prevent a Catholic succeeding because the law would in any case prevent it. A clash of the kind envisaged would not therefore be possible. It is very likely, too, that unless they positively wishing to disqualify themselves, Windsor family members within shouting distance of succession will continue to be careful themselves to remain in communion with the Church of England and – to avoid any possible complications – choose Protestant brides

Indirect effects

The following looks at possible consequences for the monarchy on the one hand and the Church of England on the other.

Changing rules of succession cannot avoid drawing attention to the peculiarities of monarchy. Any system of primogeniture, gender neutral or not, must nowadays seem objectively a rum way of running a political system. Its very basis is to select a head of state as the result of accident of birth. Conversely, of course, the fact that the system produces certainty of a kind is in its favour. There is no demeaning push-and-shove scramble to slot celebrities – political or otherwise – into the position; there is a family continuity across generations; and the absence of merit can be, as Lord Melbourne declared of the Garter, a positive attraction.

The monarchy’s survival is the prime example of the effects of the relative absence of discontinuity in our constitution. Occasional Guardian squibs aside[5], it is difficult to believe that the monarchy will be affected adversely at all by the Bill. On the contrary, conditioned to accept the illogicality of the monarchy in the first place, a little apparent ‘modernisation’ can seem proof of the institution’s protean qualities in a situation where its lack of any real executive functions silently makes it politically acceptable. And, until further notice, it will remain a Protestant monarchy.

For the Church of England, the position is somewhat more complicated. Whilst there is an obvious dissonance between a monarchy which operates on a basis of gender equality and a Church which cannot yet bring itself to do so, current difficulties arising from the Church’s troubles over female bishops should not be allowed to mask profounder issues. The truth is that the threats to the Church’s status come less from the legislature than from larger societal changes. The Church has hitherto shown great sensitivity about its established character, that is the degree of its direct involvement with the state and its associated privileges/duties. Though far from moribund, it survives – in England alone – as the last remains of the confessional state mostly dismantled in the 19th century.

Inadvertently perhaps, in voicing its concern about the future of the supreme governorship, the Daily Mail put its finger on an important point: there may be religious freedom in the UK but there is not yet, because of the English establishment, religious equality. In a country where about half the population are now prepared to say that they belong to no religion, where active church affiliation is very much a minority sport, and where important and growing minorities practise non-Christian religions, the gap between the formal position – the Church is there to serve the whole English community – and the reality has continued to grow. Some members have for some time been asking whether sundering the remaining ties with the state might be good for both: a former diocesan bishop, for example, has questioned the continuing relevance of establishment.[6]

A previous blog has drawn attention to Anglican claims that the Church of England may now be regarded as in some way protecting other religions. This is clearly new doctrine in the sense that the role is one the Church has only recently sought to assume.  Moreover, the language suffers from the same difficulty of the coronation oaths: the Church is no more able to protect anyone any more than the sovereign can preserve the Church by virtue of a coronation oath – an oath which did not prevent disestablishment in Ireland or Wales. Perhaps such claims will fall to be regarded as the high water mark of the claims of a Church which nowadays accepts religious freedom but does not wish to concede religious equality.

In this situation, finding firm ground for the Church has been difficult. Its current ‘official’ position judging from the evidence of the Archbishops to the Houses Joint Committee on the Future of the House of Lords is to hold on to what it has, including the twenty-six bishops in the House of Lords whose departure would not in fact effect disestablishment. In the context of the current Bill, great importance has been attached to keeping the sovereign ‘in communion with’ the Church to avoid any inconsistency with that person also being Supreme Governor – a role nowadays devoid of any significant executive function. It is nonetheless that position that the government has endorsed in the Bill by seeking to remove only the Catholic prohibition least threatening to the Church.

It has to be asked whether it is right to keep the remaining anti-Catholic prohibitions and whether the Church should not contemplate more flexible and nuanced positions. If the Supreme Governorship were to become regarded more as a kind of super patronage role for any head of state in recognition of the Church’s historic role in England, would the religious affiliation of the sovereign be crucial? In a similar fashion, Fidei Defensor (handily without a definite article) could be reinterpreted, as the Prince of Wales has suggested, as a slogan/totem of religious freedom.

At present the Church might abhor a Catholic in the office of Supreme Governor because of the theological offence involved. But if the office’s character were changed to reflect what actually occurs, a non-contentious link with the monarchy could remain if wanted – a possibility the Prince of Wales seems to have envisaged.[7] After all, the Church already in fact itself controls all appointments to its senior posts, and legislates for itself under an admittedly advantaged procedure but one not wholly different from that for private bills. Even royal peculiars could keep a special status though one more completely distanced perhaps from the person of the sovereign. In such a situation, the sovereign could be free like everyone else to adopt any faith or none. Such pathways seem more promising than making unhistoric and vapid claims of faith protection. Coronations – which recognise rather than make sovereigns – could rise to new challenges in what Andrew Brown has called an ‘emotional or effective establishment, where the church is a natural theatre of society’s self-understanding’.[8]

Conclusion

The relative complexity – emotional, political, legal, administrative – of these issues are no doubt glimpsed by government. Of course, the government does not wish to plunge into these deep waters. It wants a quick, limited fix without too much argument. Commentators are right that there has been too little public discussion, but not all the blame can be laid at the government’s door. What is needed is fresh, bound-breaking thinking and most of that can best come only from within the Church itself.


[1] http://www.number10.gov.uk/news/prime-minister-unveils-changes-to-royal-succession/ (accessed 28 October 2011)

[2] Commons Political and Constitutional Reform Select Committee, 11th Report 2010-12; Lords Select Committee on the Constitution, evidence session 9 January 2013; Daily Mail 7 January 2013. The latter purported to voice concerns of the Prince of Wales but without any evident authority.

[3] http://www.catholicherald.co.uk/commentandblogs/2011/10/31/why-shouldnt-there-be-a-catholic-‘supreme-governor’-of-the-church-of-england/ (accessed 17 January 2013). The article overlooks the significance of the requirement that the heir has also to be ‘in communion with’ the Church of England. Because no Catholic could therefore succeed to the throne under Mr Cameron’s proposals, much of the article’s relevant argument is vitiated.

[4] See Frank Cranmer’s article 9 January 2013 on the Law and Religion UK website analyzing the relevant canons – http://www.lawandreligionuk.com/2013/01/09/succession-to-the-crown-bill-la-reine-ou-le-prince-le-veult/ (accessed 17 January 2013.

[5] ‘Britain’s Voodoo monarchy – The succession bill puts a ludicrous spin of equality on an institution that is inherently unequal’ – Guardian , 11 January 201.

[6] Peter Selby, Eric Symes Abbot Memorial Lecture, 10 May 2012.

[7] ‘I really can’t think why we can’t have Catholics on the throne’, quoted remark from the memoirs of Lord Ashdown noted at Blackburn R (2006) King and Country (London, Politico’s), p. 119.

[8] http://www.guardian.co.uk/commentisfree/2012/dec/18/church-of-england-traditionalists-hiding-places/ accessed 13 January 2013.

 

Written by Bob Morris, formerly Home Office Under Secretary responsible for Constitutional Affairs. Leader of the Unit’s work on Church and State and also expert on FoI.

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To William and Kate, a daughter – but will she be queen one day?

As Queen Elizabeth’s 60 years on the throne are marked, questions remain on who will succeed her.

With a mixture of respect from most and fawning adoration from some, Queen Elizabeth is preparing to mark 60 years on the throne next month.

The milestone will be celebrated by a four-day bank holiday beginning on June 2nd, the date of her coronation, in a land then still grimly recovering from war.

Even before the festivities, however, thoughts on the monarchy after her are already abroad, particularly given the doubts about the ability of her son, Prince Charles, to carry the baton.

Under the current rules of succession, Charles will be succeeded by his son, William, and he by his.

Last October in Australia, on the proposal of prime minister David Cameron, the Commonwealth heads of government conference unanimously agreed in principle to abolish the rule.

In the House of Commons on Tuesday, Conservative MP Helen Grant sought clarity on the succession that will come after both her son and grandson.

“If the birds and the bees of the romantic Isle of Anglesey,” she asked deputy prime minister Nick Clegg, “were to conspire and bless our future king of England and his wife with the patter of tiny feet before this law was enacted, and if that royal baby turned out to be a little girl, would she succeed to the throne?”

Replying, Clegg said the change agreed – one that requires legal amendments throughout the commonwealth – would apply if a daughter was born first to Prince William and his wife, the Duchess of Cambridge, the former Kate Middleton.

“If the birds and the bees were to deliver that blessing to the Duke and Duchess of Cambridge – and, indeed, the nation as a whole – that little girl would be covered by these provisions.

“It is important to remember that the rules are de facto in place, even though de jure they still need to be implemented through legislation in the way I have described,” Clegg added.

Not all in the chamber looked so benignly on the royals, especially Labour MP Paul Flynn – a republican in the British meaning of the word.

In the interest of “dragging the monarchy and the office of head of state into the 21st century”, he asked if other candidates could stand as head of state “given the misgivings about King Charles III”.

Clegg, however, shooed the opinion away, telling Flynn not “to belittle the enormity” of the Australian agreement. “We are getting rid of some very long- standing, discriminatory anomalies.”

The changes will also allow a royal heir to marry a Catholic, but a monarch must continue to declare that he or she is “a faithful Protestant” and “in communion with the Church of England”.

In her coronation pledge, the queen promised to “maintain in the United Kingdom the Protestant Reformed Religion established by law” and to “maintain and preserve inviolably the settlement of the Church of England”.

Like her predecessors, a day later the queen swore the Scottish oath before the Accession Privy Council, where she pledged to uphold the Church of Scotland and the Presbyterian form of Church government in Scotland.

The law barring marriage to a Catholic dates back to the 1701 Act of Settlement when Protestant England fretted that the death of William of Orange could see a return of the Catholic Stuarts.

In a report last year, MPs noted that the decision to abolish the ban barring monarchs-to-be from marrying Catholics could have “one possible consequence”.

“The proposal thus raises the prospect of the children of a monarch being brought up in a faith which would not allow them to be in communion with the Church of England,” said the Commons Political and Constitutional Committee.

The rule under Catholic canon law can be put to one side through papal dispensation and, indeed, that has already been done in the past for the Windsors in the case of Prince Michael of Kent.

However, Dr Bob Morris of University College London has pointed out that much may have changed long before Prince William gets to the throne, let alone any of his offspring.

“It is well known that Prince Charles is interested in other faiths and wants to be regarded as ‘Defender of Faith’ rather than ‘the Faith’,” he told a Commons inquiry last year.

However, the monarchy is nothing if not flexible, even if its ability to change is hidden behind a panoply of tradition and pomp – as was shown in the days before the queen herself took the throne.

King George VI’s death in 1952, according to Prof Robert Blackburn, created a situation where for the first time in British history a monarch died leaving two daughters, but no sons.

Under the old, feudal law, the then Princess Elizabeth should not have ruled alone, since the crown should have been shared with her sister Margaret as “that is how mediaeval property law worked”.

Such a course, however, was deemed to be nonsense, leaving the Privy Council to declare the common-sense solution to be that the eldest daughter should reign alone. The last 60 years could well have turned out very differently.”

Mark Hennessy in the Irish Times. Full article at: http://www.irishtimes.com/newspaper/world/2012/0525/1224316662777.html

Constitutional Reform in the Queen’s Speech

Constitutional reform featured strongly in Queen’s Speech today, setting out legislation for the coming session of Parliament. The Unit dissects… 

Lords Reform Bill

This faces massive opposition in both Houses and may fail. The reform proposals are opposed by the Lords itself, and there is so much resistance among Conservative MPs the bill may fail to get through the Commons.

The committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost.

There are numerous issues over which the plans may fall apart. Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts.

Crime and Justice Bill

Of most constitutional relevance are the references to judicial appointments. Appointments are to be made more transparent and more diverse. Diversity is a central issue in judicial appointments, as the principle that appointment should be exclusively on merit is regarded as sacrosanct by the judiciary and many in the legal profession. The Ministry of Justice (which recently held a consultation on appointments) is thought to be frustrated at the slow pace with which minority groups have entered the judiciary.

It will be worth watching how far along the continuum between strictly merit-based appointment and affirmative action appointments are taken.

Draft Communications Bill

The proposed legislation allows intelligence officers real time access to communications of the public without a warrant. However there is growing concern about the potential impact on privacy. Theresa May commented “no-one is going to be looking through ordinary people’s emails or Facebook posts”.  The ICO have confirmed they are monitoring the development of the legislation closely and will press for the appropriate limitations and safeguards and  former head of GCHQ Sir David Ormand has drawn attention to the potential chilling effect that may occur on the use of social media as a source of information.

Electoral Registration and Administration Bill

The draft bill was widely welcomed as a means of tackling electoral fraud, however two particular concerns have also been raised. Scrapping the legal duty to register will cause millions of voters to fall off the register, as will scrapping the 2014 canvass. The Electoral Commission have called for a major public awareness campaign.

Scottish Independence & the Rules of Succession

Both issues had special mention as being actively pursued in the next parliamentary session.

The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)

Changes to the rules of succession are not all plain sailing

The announcement at the Commonwealth conference in Perth of changes to the rules of succession suggested it was a done deal.  David Cameron has the agreement of the heads of government of the other countries of which the Queen is head of state (the realms).  But all the realms now have to change their laws, in a process which will take years.

It has been a longstanding aim of British governments to end the discrimination in the laws of succession.  11 private member’s bills have been introduced into Parliament to reform the Act of Settlement.  Successive governments have supported the change in principle, but have said that only the government could legislate; because only the government could negotiate with the other realms.  But getting all the realms signed up seemed daunting.

Gordon Brown went to the Commonwealth conference in 2009 with the same objective as David Cameron, but failed.  Since then there has been a lot of work behind the scenes to get the other 15 realms on board.  The tide of goodwill towards the monarchy following the royal wedding in 2011 and the Queen’s diamond jubilee in 2012 provides the perfect window of opportunity to make the change.

The fanfare of David Cameron’s announcement is intended to give maximum momentum to a project which is not all plain sailing.  The UK can give a lead, but cannot legislate for the other 15 realms.  In Australia the six states claim a separate relationship with the Crown, and the change may require their separate consent.  In Canada the federal government will certainly have to gain the consent of the provinces, including Quebec.  In both countries it will revive the republican issue.

Questions will also be asked about why the discrimination against Roman Catholics is only to be partially removed.  The prohibition on the Monarch being a Catholic will remain. Even if it were removed, no Catholic could satisfy the requirement to be ‘in communion with’ the Church of England and thence Supreme Governor of the Church of England.  Catholics in Britain might be willing to accept that, although their numbers are now broadly equal to Anglicans.  While welcoming the removal of the ‘unjust discrimination’ against Catholics, the Archbishop of Westminster, Vincent Nichols, said ‘At the same time I fully recognise the importance of the position of the established church [the Church of England] in protecting and fostering the role of faith in our society today’.  But in the 15 realms Catholics outnumber Anglicans by three to one, and they may be less understanding.

The ending of male primogeniture is less controversial.  Most other European monarchies have changed their rules of succession already to make them gender neutral.  Sweden changed their law in 1980, Holland in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009 (with a referendum), Luxembourg in 2011.  Only Spain, Monaco and Liechtenstein retain male primogeniture.

More information:

Press Release: Cameron delivers Brown’s project on rules of succession, but not all plain sailing

Press Notice
Friday 28 October: for immediate release

Cameron delivers Brown’s project on rules of succession, but not all plain sailing, says constitutional expert

Commenting on today’s announcement in Perth of the planned changes to the rules of succession, Director of the Constitution Unit Prof Robert Hazell said:

“It has been a longstanding aim of successive British governments to end the discrimination in the laws of succession.  Gordon Brown went to the Commonwealth conference in 2009 with the same objective as David Cameron, but failed.  Since then there has been a lot of work behind the scenes to get the other 15 realms on board.  The tide of goodwill towards the monarchy following the royal wedding in April and the Queen’s diamond jubilee next year provides the perfect window of opportunity to make the change.”

“But it is not all plain sailing” Prof Hazell continued.  “The UK cannot legislate for the other 15 countries.  In Australia the six states claim a separate relationship with the Crown, and it may require their separate consent.  In Canada the federal government will certainly have to gain the consent of the provinces, including Quebec.  In both countries it will revive the republican issue.”

“Questions will also be asked about why the discrimination against Catholics is only to be partially removed.  The prohibition on the Monarch being a Catholic will remain, because the Monarch is Supreme Governor of the Church of England.  Catholics in Britain might be willing to accept that, although their numbers are now broadly equal to Anglicans.  But in the 15 realms Catholics outnumber Anglicans by three to one, and they may be less understanding”.

Notes for Editors

  • The UK is following the example of other European monarchies, most of which have changed their rules of succession already to make them gender neutral.  Sweden changed their law in 1980, Holland in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009 (with a referendum), Luxembourg in 2011.  Only Spain, Monaco and Liechtenstein retain male primogeniture.
  • 11 private member’s bills have been introduced into Parliament to reform the Act of Settlement.  Successive governments have supported the principle of the change, but have said that it required government legislation.  Only the government can negotiate with the other realms.
  • Prof Hazell is available for interview 0207 679 4971, or contact our Press Officer Brian Walker on 07892 176347.

Royal Succession rules: view from the Realms

HM Queen Elizabeth IIPost by Anne Twomey, Associate Professor at the University of Sydney Law School

Changes to the rules of succession will be one of the items discussed at the Commonwealth Heads of Government meeting in Perth on 28-30 October.  These changes include removing the priority given to males over females, and removing the disqualification of people from the line of succession if they marry a Catholic.

Not all Commonwealth countries have to agree to such changes, because most are republics.  It is only the fifteen other ‘Realms’, of which Her Majesty is Sovereign, that are potentially affected.  They range in size from Canada and Australia at one extreme to St Kitts and Nevis and Tuvalu at the other.

Westminster no longer has any power to legislate for these countries.  Any changes the UK makes to the laws of succession will not apply to those Realms, unless the local law of the Realm picks up and applies the British law, or simply identifies its Sovereign by reference to whoever is Sovereign of the United Kingdom.  In Tuvalu, for example, Her Majesty is Queen at the request of the people of Tuvalu.  The office of Sovereign extends to her heirs and successors, according to the law of Tuvalu, but in the absence of such a law, the British law of succession applies.   In contrast, in New Zealand, the Act of Settlement has become part of New Zealand law and can only be changed in its application to New Zealand by the New Zealand Parliament.  So unless the New Zealand Parliament changes its law of succession, the old law will continue to apply, regardless of any change made in the United Kingdom.

Matters become more awkward in the federations.  In Australia, whether the federal Parliament has the power to enact a law changing the rules of succession, or whether it requires the cooperation of all the State Parliaments remains debateable.  In Canada, the matter is even more uncertain.  A constitutional amendment in relation to the office of the Queen requires the passage of resolutions by both Houses of the federal Parliament and all the provincial legislatures.  It is unclear whether such a law would amount to a constitutional amendment.  However, if the consent of all the provinces is required, difficulties might arise in getting the consent of Quebec.

The United Kingdom is perfectly entitled to change its laws concerning succession to its throne at any time without needing the consent of any other country.  The ‘convention’ set out in the preamble to the Statute of Westminster 1931, which required the parliamentary consent of certain Dominions, is out-dated and arguably no longer applicable.  However, if the British Government places importance on maintaining a single law of succession across all of the Realms, then this may be more difficult to achieve, given the constitutional difficulties in some of the Realms.  The discussion at CHOGM will be an important first step in this process.

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Royal Wedding: congratulations, or commiserations?

While we must all be happy for Prince William and Kate Middleton on their wedding day, we must also be aware of the heavy burdens which will be thrust upon them. Prince William was born into the Royal family and had no choice; but for Kate there was a choice.  She could have remained a private person; but from now on she will become public property.

Members of the Royal family do not enjoy some fundamental human rights which the rest of us take for granted:

  • They have very little privacy.  The rest of us have a right to private and family life.  William and Kate will be pursued by photographers wherever they go.  Their children will also be the subject of intense media interest.  Celebrities choose to be in the public eye; Royals have no such choice.
  • They have no choice of career.  William’s choices are effectively limited to military service or charitable good works.  Senior members of the Royal family cannot go into business.  Kate has already given up her job in preparation for the wedding
  • They have no freedom of speech.  Prince William is not free to say what he thinks, in particular on anything remotely political.  Although Kate is less restricted, she also has to be extremely careful not to be drawn into political or public controversy
  • They have no freedom of religion.  If Prince William or Kate were to become a Roman Catholic, he would have to step out of the line of succession and renounce any claim to the throne
  • Members of the Royal family are not free to marry whom they wish.  Royal marriages require the consent of the sovereign; and that consent depends upon government approval.  Government approval was withheld from King Edward VIII’s proposed marriage to Wallis Simpson in 1936; and from Princess Margaret’s proposed marriage to Peter Townsend in 1955.

The burdens of monarchy were clearly brought out in the film The King’s Speech. That depicted graphically the loneliness of the position, the constant pressure to put on a good public performance, and the difficulty of finding close confidants with whom to share the burdens.  To that must now be added the insatiable demands of the modern media, who will be watching their every move.  We wish them well; but we should also understand what burdens they assume in our name.

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